This Harvard Law Review recently published this case comment on the Fifth Circuit’s en banc decision in Petteway v. Galveston County, which held that Section 2 of the VRA doesn’t authorize claims by coalitions of minority voters.

The Fifth Circuit’s erroneously narrow reading of Section 2 contravenes the statute’s broad language and expansive remedial intent. This error will diminish the protection that the Act was intended to provide in the context of our heterogeneous and diversifying electorate. . . .

 The Supreme Court has considered and rejected the structure of the majority’s argument — that is, if coalition claims were permissible, Congress would have expressly written them into the law — as an illegitimate interpretative strategy for analyzing the VRA.⁸⁰ By demanding express authorization of coalition districts, the Fifth Circuit disregarded the capacious legislative purpose undergirding the VRA⁸¹ and ignored the “super-strong presumption” of statutory stare decisis,⁸² which would have compelled an alternative result. . . .

The Fifth Circuit’s rejection of coalition claims risks undermining cross-racial solidarity and rewarding residential segregation. The United States is becoming more diverse and less residentially segregated for certain minority groups — two positive developments.⁸⁸ But the Fifth Circuit’s ruling risks making residential heterogeneity an impediment to Section 2 relief.⁸⁹ As a community diversifies, it becomes less likely that households of any single race will be sufficiently concentrated to meet the Gingles compactness threshold that plaintiffs must satisfy to bring a Section 2 claim,⁹⁰ despite high levels of racially polarized voting in many jurisdictions.⁹¹ Minorities seeking representation will be disincentivized from building ties with residents of different racial communities.⁹² Such a development could perversely incentivize a zero-sum approach to addressing racial voting discrimination and discourage cross-racial coalition-building.⁹³

Eric McGhee, Chris Warshaw, and I wrote this column in today’s Washington Post on the evaporation of the U.S. House’s longstanding pro-Republican bias in the 2020s.

For more than two decades, the House was consistently biased in Republicans’ favor. Votes cast for GOP candidates translated into congressional seats more efficiently than did votes for Democrats. . . .

Now, that fixture of American politics is gone. In the 2022 and 2024 elections, according to standard measures of partisan bias, the House exhibited no pro-Republican lean at all. Of course, Republicans won narrow majorities in 2022 and 2024. But they did so because they won narrow pluralities of the total House vote. For the first time in a generation, both Republicans’ control of the chamber and their slim governing margins accurately reflected voters’ preferences. . . .

Thanks to this shift, legislative divisions over the next two years will mirror cleavages in the electorate, at least in partisan terms. And when it’s time to vote again, whichever party earns a plurality of the total votes cast in House races is likely to win the speaker’s gavel. Neither party should expect its share of House seats to be too inflated or deflated relative to its popular appeal. . . .

What spurred this change? Part of the story is a decline in extreme Republican gerrymandering. In 2012, six states’ congressional plans had pro-Republican efficiency gaps of two or more seats. This decade, only one state’s map (North Carolina’s for the 2024 election) was as tilted toward Republicans. . . .

At the same time, the 2020s feature more highly pro-Democratic plans. In 2012, no map had a pro-Democratic efficiency gap of at least two seats. This decade, Illinois’s Democratic gerrymandering boosted Democrats by 3.5 seats on average. California’s commission-drawn map netted them roughly 4.5 bonus seats, possibly because the spatial patterns of the state’s voters favor Democrats. . . .

The House’s reduced tilt also reflects the country’s changing political geography. For years, some have argued that Republicans “naturally” benefit from redistricting because Democrats squander too many votes in safe urban districts. In 2024, however, cities swung to the right as Republicans made large gains among young and minority voters. That meant Democrats won most urban districts by considerably tighter margins. Concurrently, rural and exurban areas backed Republicans to an even greater extent. Districts there are now about as blood-red — i.e., as inefficient — as their deep-blue counterparts in cities. . . .

With these scenarios on the horizon, today’s unbiased House shouldn’t be a pretext for putting off redistricting reform. The House isn’t balanced because most states have fair congressional plans; to the contrary, many states have unfair plans, but Democratic and Republican gerrymanders happen to offset one another almost perfectly. This equipoise is fortuitous, but it continues to leave many Americans poorly represented by their states’ congressional delegations. Redistricting abuses also remain rampant at the state and local levels. These legislatures’ biases can’t be balanced by maps elsewhere being tilted in the opposite direction.

The need to curb gerrymandering, then, is as urgent now as when it previously distorted the House as a whole.

Harvard Law School held a discussion between me and Ruth Greenwood about my new book, “Aligning Election Law.” Here are some excerpts from Harvard Law Today’s writeup about the event.

“The incredible evidence here … is that most voters are relatively moderate in their policy preferences,” he said. On the other hand, “Donors and spenders in the campaign finance world have extremely different views from the general public. They have sharply bi-modal policy preferences. Most donors are quite liberal or quite conservative, and there are very few moderate donors. And politicians’ voting records … turn out to be a perfect replica of the bi-modal distribution of donors.” Thus, it’s not simply a matter of the rich influencing the political agenda. . . .

That is among the issues that Stephanopoulos outlines in his new book “Aligning Election Law.” He discussed his findings at Langdell Library with Assistant Clinical Professor Ruth Greenwood, who directs the law school’s Election Law Clinic.

Alignment, Stephanopoulos explained, is the simple idea that the output of the government should correspond to what the people want the government to do. “This is a pretty intuitive value that lies at the core of many different conceptions of democracy,” he said. Alignment can be measured in political party affiliations, in representative stands that politicians take, and in the policies that are eventually enacted.

Yet there are significant areas in which the electorate’s wishes and the government’s output are greatly misaligned. One is the strong influence of donors and another involves gerrymandering —  something that he and Greenwood have done substantial work to combat.

“Partisan gerrymandering lets you take the same set of voters, with the same partisan and ideological preferences. You draw one district configuration instead of another, and all of a sudden you’ve dramatically altered the partisan makeup of the legislature.” This, he suggested, has an outsized effect on policy, since “Gerrymandering takes you from way too liberal outcomes if the Democrats gerrymander to way too conservative outcomes if the Republicans gerrymander. That influence, that delta, is an order of magnitude larger than you get with voting policies, for example.

“So, I think there’s one takeaway for current electoral rules, it’s that money and politics and partisan gerrymandering matter more than any other electoral rules today,” he said. For that reason, he described the current state of alignment in American politics as “pretty poor.” . . .

In many cases, he said, politicians simply get wrong information about public opinion. They “often misperceive what people want because they’re only hearing from the ideological fringes, the extremist loudmouth busybodies who approach members of the legislature. So more representative contact could help … Politicians often think that their constituents are much more left- or right-wing than they really are. One way to fix that might be for private actors to make available better data about public opinion.”

To that end, he and Greenwood have launched TrueViews (trueviews.org), which collects public opinion data on a variety of issues and filters them by area, allowing anyone to access how a particular state, city, or even school district stands on a particular topic. (It currently features data on gun control, environmental policies, criminal justice, and more.)

In a major decision today, a New York appellate court reversed a trial court decision striking down the New York Voting Rights Act on its face. The court held that the town of Newburgh wouldn’t necessarily be forced to violate the Equal Protection Clause by any remedy the town might be ordered to adopt. Accordingly, the town lacked the capacity to facially challenge the NYVRA. Harvard Law School’s Election Law Clinic is helping to litigate this case, and I argued the appeal in December. The case will now head to trial on plaintiffs’ vote dilution claims. Some excerpts from the decision are below:

For the reasons discussed below, it cannot be said as a matter of law on this record that compliance with the NYVRA would force the defendants to violate the Equal Protection Clause.

[R]ace-based districting is only one of the possible remedies under the NYVRA; the NYVRA also contemplates remedies that do not sort voters based on race, such as such as ranked-choice voting, cumulative voting, limited voting, and the elimination of staggered terms. . . .

Further, we conclude that the NYVRA need not contain the first Gingles precondition, that the “minority group . . . be sufficiently large and [geographically] compact to constitute a majority in a reasonably configured district” to survive a facial challenge to its constitutionality under the Equal Protection Clause. The United States Supreme Court has never said that the Gingles test was required by the constitution, as opposed to resulting from a statutory interpretation of section 2 of the FVRA. The only time the Fourteenth Amendment is mentioned in the majority opinion in Gingles is in the background section where the court noted that the plaintiffs’ lawsuit challenged the subject districts as violating the Fourteenth and Fifteenth Amendments in addition to violating section 2 of the FVRA. The reason that the United States Supreme Court included the first Gingles precondition was because of its conclusion that if the minority group were unable to demonstrate that it was sufficiently large and geographically compact to constitute a majority in a single-member district, “the multi-member form of the district [could not] be responsible for minority voters’ inability to elect its candidates” (id. at 50). Gingles was not contemplating influence districts or remedies such as ranked-choice voting, cumulative voting, limited voting, or the elimination of staggered terms. . . . Since the NYVRA specifically allows for remedies that might allow for minorities to elect their candidates of choice or influence the outcome of elections without their constituting a majority in a single-member district, it was rational for the New York Legislature to not include the first Gingles precondition as a precondition to liability under the NYVRA.

Further, while the text of the NYVRA is unlike the FVRA in that it does not require the plaintiff in every vote dilution case to show that “under the ‘totality of the circumstances’ . . . the political process is not ‘equally open’ to minority voters,” in order to obtain a remedy under the NYVRA, a plaintiff still must show that “vote dilution” has occurred, and that there is an alternative practice that would allow the minority group to “have equitable access to fully participate in the electoral process.” Thus, the NYVRA does not significantly differ from the FVRA in this respect.

Finally, even if it were unconstitutional to apply the NYVRA in situations where the Gingles test has not been satisfied, the NYVRA could still be constitutionally applied in situations where the Gingles test has been satisfied. All parties agree that the FVRA as interpreted by Gingles is constitutional (see Allen v Milligan, 599 US at 41). Here, the plaintiffs contend that the evidence they submitted in opposition to the defendants’ motion demonstrates that each element of the Gingles test has been satisfied.

I posted this paper introducing a new form of proportional representation that combines the key features of the two PR systems that are most commonly advocated in the American context. The paper is part of a Wisconsin Law Review symposium. Here’s the abstract:

American jurisdictions are considering switching to proportional representation (PR) in volumes unseen for a hundred years. But the forms of PR currently being debated have drawbacks. The most (domestically) prominent of these, proportional ranked-choice voting (P-RCV), is both vulnerable to vote leakage among parties and cognitively challenging for voters. Another salient system, open-list proportional representation (OLPR), risks underrepresenting minority voters. This Article therefore introduces a new form of PR—ranked-list proportional representation (RLPR)—that promises to alleviate these concerns. Under RLPR, voters first vote for a single party. They then rank only this party’s candidates. Voters’ party votes determine each party’s seat share. And voters’ candidate rankings establish which of each party’s candidates win its allotted seats. Like all forms of list PR, RLPR makes it impossible for votes to leak across party lines. RLPR is also cognitively simpler for voters because it asks them to rank only one party’s (not all parties’) candidates. And RLPR’s sequential reallocations of votes typically lead to proportional minority representation (both intraparty and overall). Accordingly, American jurisdictions should add RLPR to their menu of PR options. If they choose to adopt it, they should pair it with P-RCV in the primary election.

I wrote this column for the Washington Post on the surprising trend of depolarization in last month’s election. If it holds, this trend has enormous implications for American politics.

Here’s a shocker: One of the unnoticed themes of the recent election was depolarization. The electoral chasms between groups of voters shrank compared with four years earlier. This was true across several axes and is mostly attributable to traditional Democratic constituencies moving to the right. If these trends endure, they promise a new political era.

. . . This combination of minority voters shifting rightward and White voters staying put resulted in the lowest level of racially polarized voting in a generation. The Black-White gap in Trump support declined from 47 percentage points in 2020 to 40 points in 2024. The Latino-White gap fell from 20 points to 13 points.

. . . The gap between the youngest and the oldest voters’ choices therefore plummeted from 15 percentage points in 2020 to four points in 2024.

. . . Accordingly, after decades of divergence, urban and rural areas edged closer to each other politically. . . .

What explains this convergence? The superficial answer is that historically Democratic groups swervedto the right while long-standing Republican constituencies didn’t budge. Minority members, young people, city dwellers and women — they’ve all been Democratic stalwarts, and they allmoved toward Trump. The only major Democratic cohort that didn’t shift rightward was people with at least a college degree. Conversely, White, old, rural and male voters are pillars of the modern Republican coalition. Surprisingly, they mostly resisted the pro-Trump swing among the rest of the electorate. . . .

Yet depolarization could also benefit Democrats by facilitating the translation of their votes into political power. At the presidential level, the tipping-point state that gave Trump his electoral college majority in 2024 — Pennsylvania — was just 0.6 percentage points more Republican than the national popular vote. By comparison, the tipping-point state in 2020, Wisconsin, was 3.8 points more Republican than the country as a whole. . . .

Similarly, the House of Representatives is on track to be less skewed, in aggregate, than at any time since the early 1990s. A common measure of the House’s bias compares the election result in the median House district with the national popular vote. In the coming Congress, the median House district will have almost the same partisan slant — a slight Republican tilt — as the country as a whole. And again, some of the credit is due to depolarization. . . .

This Harvard Crimson story discusses the new TrueViews site that aims to improve representation by providing elected officials with more information about their constituents’ policy views.

Professors from Harvard and George Washington University launched a data visualization tool early last month to help legislators better assess local opinions on policies.

TrueViews — a website built in collaboration between Harvard Law School and the Bloomberg Center for Cities — displays a color-coded United States map containing detailed statistics of political perspectives on a variety of topics, including criminal justice, abortion and gun control.

To create the site, researchers relied on data from 18 national surveys conducted between 2009 through 2023. The site displays public viewpoints on 32 policy questions by zip code, city, county, district, and state.

Harvard Law School professor Nicholas O. Stephanopoulos said he hopes the tool will help bridge the gap between constituents’ desires and elected officials’ policy priorities.

“There’s a distressing pattern today where representation and policy is often quite distorted relative to what people want, and there’s some evidence that some of that distortion is just because policymakers don’t know what people think and want,” Stephanopoulos said.

Stephanopoulos added that, according to the data, the country is less polarized than the public often assumes.

“It was a pleasant surprise to see the variety and the complexity of public opinion, and to see that it doesn’t always boil down to the standard red-blue, or north-south, or city-country cleavages,” he said.

Yesterday was publication day for my new book, Aligning Election Law. The book builds on several earlier articles of mine, and argues that promoting alignment between governmental outputs and popular preferences should be an overarching goal for election law. You can download the book’s introduction for free here. For ELB readers in the Boston area, I’ll be giving a talk about the book at MIT on Oct. 21 at 6pm; folks can RSVP here. And here’s the book’s abstract:

This book argues that alignment between governmental outputs and popular preferences should be a tenet of the law of democracy. Alignment is a core democratic value. Yet it isn’t appreciated by election law scholarship, much of which focuses on other democratic goals. Nor do the courts consider alignment when deciding election law cases. In fact, the Roberts Court has undermined alignment at almost every turn. And in part because of these rulings, modern American politics is marred by pervasive misalignment. If alignment were recognized as a legal and political principle, it could function as a sword or as a shield. As a sword, alignment would be wielded offensively to strike down misaligning electoral practices (or not to enact them in the first place). As a shield, alignment would be deployed defensively to justify aligning electoral practices (in litigation or in public discourse). The federal courts could be a valuable ally in the struggle for alignment. Unfortunately, the Roberts Court has been a foe rather than a friend, declining to invalidate many misaligning policies and nullifying several aligning ones. Fortunately, federal litigation isn’t the only route to a more aligned political system. Congress could pass a range of potent aligning laws. So could state legislatures. State courts are also more promising venues, relative to their federal counterparts, because they adhere to a democracy principle unfamiliar to federal law. Last but not least, the people themselves could pursue alignment on their own, through either direct democracy or wholly private activity.

I wrote this column for The Hill on the potential of TrueViews to improve representation by better informing politicians about their constituents’ policy views. I also did this radio interview about TrueViews with Inside Sources.

Politicians’ knowledge of their constituents’ views is worse than you’d expect for professionals whose careers depend on public approval. 

A pioneering 2018 study found that Republican state legislators err by 10 to 40 percentage points in their perceptions of voters’ positions on issues, including abortion, gun control and immigration. Moreover, these politicians almost always err in a conservative direction, mistakenly believing voters are far more right-wing than they actually are. . . .

If politicians’ skewed perceptions of their constituents’ preferences contribute to polarization, could correcting these biases lead to better representation? An innovative 2008 experiment suggests that it could. 

A pair of researchers conducted a large-scale survey of New Mexicans’ views on a pending fiscal proposal. This poll was big enough to generate estimates of public opinion in each State House district. The scholars then circulated the results to some (randomly chosen) State House members but not others. 

Among the legislators who were informed about their voters’ preferences, their votes on the fiscal proposal were highly responsive to public opinion. Conversely, among the legislators who denied this data, there was no correlation between their votes and their constituents’ attitudes toward the bill.

Unfortunately, this experiment is the exception, not the rule. In general, politicians lack policy-specific information about their voters’ preferences. Presidents often have access to this data at the national level. But at every subnational level, this data isn’t widely available. The representational gains that would follow if politicians were more knowledgeable about their constituents’ views therefore don’t materialize because most politicians aren’t well-informed. . . .

[A] new site called TrueViews, which I helped to produce, uses many national surveys to estimate people’s preferences on many issues within many geographic units. In sum, TrueViews covers dozens of policies and geographic units ranging from municipalities to districts to states and periods from 2009 to the present.

For the first time, the data make it possible for politicians of all stripes to learn instantly what their voters want. As these capabilities become better known, they could plausibly dampen polarization and bolster representation.

For politicians who would like to abide by their constituents’ preferences but frequently don’t know what they are, the new public opinion tools supply this exact information. They enable politicians who want to be faithful delegates to be faithful delegates.

What about politicians who would rather advocate other positions, like those of their parties or donors? For them, the new tools raise the cost of defying the will of the people. 

Candidates running against these politicians could highlight their divergence from voters’ preferences. Journalists could run stories about this mismatch. Activists could make it the target of protests. In some cases, these efforts might persuade these politicians to heed public opinion. In others, these politicians might be ousted from office and replaced by rivals more mindful of voters’ views.

In the 2010s, Ohio voters approved constitutional amendments that aimed to curb partisan gerrymandering primarily by requiring parties’ legislative seats to be roughly proportional to their statewide votes. This strategy has now come to be seen as a failure because it didn’t include structural reform — i.e., it didn’t transfer mapmaking authority from self-interested politicians to an independent commission. In 2022, politicians repeatedly enacted plans flaunting the state constitution’s proportionality requirement and ignored the Ohio Supreme Court’s efforts to enforce this requirement. So this year, Ohio voters have put a measure on the ballot — Issue 1 — that would pair a proportionality criterion with structural reform. In order to “ban partisan gerrymandering,” Issue 1 would both require “the statewide proportion of districts in each redistricting plan that favors each political party [to] correspond closely to the statewide preferences of the voters of Ohio” and create an independent commission insulated from political pressures.

Last month, in an Orwellian move, the Ohio Ballot Board drafted ballot language for Issue 1 that flips the measure’s meaning on its head. According to the Board’s summary, Issue 1 seeks to “[r]epeal constitutional protections against gerrymandering” and to “require[]” the proposed commission “to gerrymander state legislative and congressional districts.” Unsurprisingly, the measure’s proponents objected to this deceptive language. I was also part of a group of scholars (along with Ned Foley, Ruth Greenwood, David Niven, and Dan Tokaji) that filed an amicus brief criticizing the Board’s misleading summary of Issue 1.

Yesterday, in another regrettable development, the Ohio Supreme Court mostly upheld the ballot language for Issue 1. The crux of the court’s reasoning was that some people refer to district plans that try to achieve proportional representation as “bipartisan gerrymanders.” It’s therefore accurate, according to the court, to say that Issue 1 requires gerrymandering — bipartisan gerrymandering.

Under Gaffney, a two-party, proportional-representation redistricting model may not be unconstitutional. But it is gerrymandering. . . .

What these rules require falls within the meaning of “gerrymander.” They mandate the new commission draw district boundaries that give a political advantage to an identifiable group—Republicans in some districts and Democrats in others. They require the commission to draw these partisan-advantaged districts at the expense of traditional, neutral redistricting criteria to overcome natural political geography and achieve proportional representation. These rules are not meaningfully different from those that produced the Gaffney plan. See Gaffney, 412 U.S. at 737-738. Because that was gerrymandering, Gill, 585 U.S. at 61, the requirements at issue here may fairly be called gerrymandering.

In her partial dissent, Justice Brunner pointed out that the Board’s summary never uses the adjective, “bipartisan,” before “gerrymandering.” The Board’s summary thus suggests that Issue 1 requires the proposed commission to engage in the more familiar form of gerrymandering — partisan gerrymandering. But that suggestion is wrong. Not only is proportionality closer to the opposite than the essence of partisan gerrymandering, the Ohio Constitution already requires proportionality and the Ohio Supreme Court has already characterized this requirement as an anti-gerrymandering provision.

. . . [D]espite the claims of the majority, gerrymandering is not proportionality. Gerrymandering contemplates abuse; proportionality contemplates fairness—that is, districts’ close correspondence in their partisan political leanings to the partisan political leanings of the voters of the state. . . .

. . . [T]his is similar—but linguistically different—from what Article XI, Section 6(A) of the Ohio Constitution already provides. The difference, according to the majority opinion, is that the standards under Article XI, Section 6 need only be “attempted” to be met. Majority opinion at ¶ 37. The majority’s discussion of gerrymandering equates it with proportionality, and it finds that the proposed amendment requires gerrymandering, while current law requires only attempted gerrymandering. This is nonsensical.

Both Justice Brunner’s and Justice Donnelly’s opinions also include pointed passages about the black-is-white quality of the Board’s summary. Here’s Justice Brunner:

The majority opinion reflects an abject failure of this court to perform an honest constitutional check on the ballot board’s work. We should be requiring a nearly complete redrafting of what is perhaps the most stunningly stilted ballot language that Ohio voters will have ever seen. The ballot board’s actions, endorsed by a majority of this court, leave any objective observer scratching their head and asking, “Who’s in charge here—Ohio’s people or its politicians?”—which ironically is the essential issue the proposed constitutional amendment seeks to address.

And here’s Justice Donnelly:

Given that the four members of this court in the majority today apparently think that the word “ ‘boneless’ ” means “ ‘you should expect bones,’ ” Berkheimer v. REKM, L.L.C., 2024-Ohio-2787, ¶ 38 (Donnelly, J., dissenting), I’m sure it comes as no great surprise that they think that a constitutional amendment to “ban partisan gerrymandering” means to “require[] gerrymander[ing].” While the majority’s Amelia Bedelia approach to the law and the absurdity of the majority’s conclusions might make you laugh, it should also make you outraged. Everyone should be outraged by today’s decision, regardless of whether one thinks the proposed constitutional amendment is a wonderful idea, a terrible idea, or anything in between.

Harvard Law Today covers TrueViews, the new tool for seeing public opinion on many policies and at many geographic levels.

[T]hanks to a new freeware data tool created by experts from Harvard Law School and the Bloomberg Center for Cities at Harvard University, determining the policy preferences of constituents in any geographic location within the United States just became infinitely easier.

At first glance, the visionary “TrueViews” data platform looks like a standard map of the United States. But as soon as users move their cursor over any geographic location on the diagram, the tool’s true value comes to life.

Using survey results from over one million Americans, TrueViews provides users an immediate snapshot of how residents in any particular state, county, district, city/town, or zip code feel about 32 different policy issues ranging from marijuana decriminalization to universal healthcare to fossil fuel emission limits. 

By simply selecting one of the issues — for example, “Do you support or oppose eliminating mandatory minimum sentences for non-violent drug offenders?” — and any jurisdiction within the United States, TrueViews immediately generates a color-coded geographic overview and estimates of what percentage of residents support or oppose the policy selected. 

The goal, according to its creators? Equip decisionmakers and information providers throughout the country with a more accurate understanding of how the people they serve feel about important policy issues.

Ned Foley, Ruth Greenwood, David Niven, Dan Tokaji, and I filed this amicus brief today, exclusively in our personal capacities, arguing that the Ohio Ballot Board’s summary of Ohio’s anti-gerrymandering initiative is deeply misleading. While the initiative would be one of the country’s most potent safeguards against gerrymandering, the Board’s summary says that it would require the proposed commission to gerrymander. Here are some excerpts from the brief’s introduction:

Orwell himself would have trouble topping the efforts of the Ohio Ballot Board. Legally obligated to draft ballot language that “fairly and accurately” summarizes Issue 1—a proposed constitutional amendment that would curb partisan gerrymandering in Ohio—the Board instead adopted text telling voters that Issue 1 would itself constitute gerrymandering. According to the Board’s up-is-down summary, the amendment supposedly “[r]epeal[s] constitutional protections against gerrymandering.” Relators_034 (emphasis added). In fact, Issue 1 dramatically strengthens these safeguards. The Board’s summary also falsely accuses the amendment of “requir[ing]” the proposed commission “to gerrymander the boundaries of . . . districts to favor either of the two largest political parties.” Id. (emphasis added). The whole point of Issue 1 is actually to prevent gerrymandering by stopping self-interested politicians from drawing district lines and subjecting district maps to a partisan fairness requirement.

. . . First, while conceptions of gerrymandering abound, no common notion of this activity equates it with ensuring that parties’ legislative representation is congruent to their popular support. On some accounts, this kind of congruence is the antithesis of gerrymandering. At worst, from other perspectives, such congruence is orthogonal to the injury inflicted by gerrymandering.

Second, Ohio’s distinctive history establishes that, in this State, partisan gerrymandering can’t possibly mean correspondence between parties’ statewide seat shares and vote shares (“seat-vote correspondence”). This is because Ohio already has a state constitutional requirement that “[t]he statewide proportion of districts . . . favor[ing] each political party shall correspond closely to the statewide preferences of the voters.” Ohio Const. art. XI, § 6(B). This Court is intimately familiar with this requirement, having decided a series of cases about it just two years ago. In these cases, all of the Court’s members—both in the majority and dissenting—agreed that the requirement aims to thwart gerrymandering. No one voiced the Board’s preposterous position that the requirement compels gerrymandering.

Third, because the U.S. Supreme Court has commented extensively on the relationship between partisan gerrymandering and proportional representation, it’s important to set the record straight about what that Court has said. When a plurality of the Court recognized that gerrymandering could be unconstitutional, these justices held that a party’s disproportionally low representation is an element of the offense—just not enough, alone, to prove liability. Over the years, several justices stated that a district plan’s achievement of proportional representation is a valid defense to a charge that the plan is an unlawful gerrymander. And more recently, when the Court deemed partisan gerrymandering nonjusticiable, the majority asserted that plaintiffs challenging gerrymandering necessarily seek proportional representation. Proportional representation must be distinct from gerrymandering, then, since it would be nonsensical for gerrymandering’s foes to ask for a remedy of more gerrymandering.

This launch event for TrueViews will be held on Tuesday, September 3, from 11am – 12:15pm, both in-person and virtually. TrueViews is a new site I’ve been working on together with Justin De Benedictis-Kessner, Ruth Greenwood, and Chris Warshaw, funded by the Bloomberg Center for Cities at Harvard University. For the first time, TrueViews will make available public opinion data on many policies and at many geographic levels (from states to districts to zip codes). I’ll be saying more about TrueViews in the coming days, but for now, here’s the summary for the launch event. You can RSVP here.

Do candidates seeking political office know what their constituents think and care about? A new resource developed by Harvard Law School’s Election Law Clinic and supported by the Local Politics Lab at the Bloomberg Center for Cities at Harvard University provides new, granular data on public opinion in the United States. TrueViews can address misrepresentation and polarization by providing city leaders and other policymakers with precise insights into the policy preferences of their residents. The data platform can also bolster scholarly research on local politics.

TrueViews uses cutting-edge methodology to produce accurate estimates of public opinion in previously unavailable geographical snapshots, including by city or town, zip code, and even school district. Meet the faculty behind TrueViews as they discuss the use of state-, county-, and city-level public opinion data on key issues such as criminal justice, education, immigration, or taxes.

This is a guest post by Maureen O’Connor, Retired Chief Justice of the Ohio Supreme Court.

James Madison, in Federalist No. 10, warned us about the dangers of factions—groups that, driven by self-interest, work against the public good. 

“By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community,” Madison wrote.

This threat of self-interested political factions treading on the constitution and the rule of law foretold by Madison is happening today in my home state of Ohio.

Secretary of State Frank LaRose, acting as the leader of a faction intent on preserving political power, has manipulated the ballot language for Issue 1, a redistricting reform amendment in Ohio that is on the ballot this Nov. 5. As chair of the Ohio Ballot Board, LaRose pushed through this misleading language on a slim 3-2 vote, using the power of his office not for the general public good but to advance his own private agenda.

As the former Chief Justice of the Ohio Supreme Court, I’ve dedicated much of my career to upholding the rule of law and ensuring that every citizen’s voice is heard. The election law community should take notice of the lawsuit filed by Citizens Not Politicians against the Ohio Ballot Board and LaRose challenging their illegal decision. This lawsuit is a fight for the future of fair elections in Ohio and it is a test of the checks and balances in our three-branch system of representative government. It could have broader implications for what self-interested politicians and their factions think they can get away with in the future.  

On August 19, 2024, Citizens Not Politicians, alongside dedicated Ohioans Cara Dillon and Annette Tucker Sutherland, filed an original action in the Ohio Supreme Court. The lawsuit challenges the misleading and illegal ballot language adopted by the Ohio Ballot Board for Issue 1. The Ballot Board’s action is a blatant abuse of power, designed to protect political interests rather than inform Ohio voters.

The Ohio Constitution and the Revised Code require that ballot language must be accurate, impartial, and not prejudicial. Unfortunately, the language approved by the Ballot Board violates these legal standards. It misrepresents the amendment’s provisions, falsely claiming, for example, that it would require gerrymandering to favor the two largest political parties. In reality, the amendment would do the opposite—banning partisan gerrymandering and ensuring fair representation for all Ohioans.

This lawsuit is not just about correcting these falsehoods. It’s about protecting our democracy from manipulation. It’s about ensuring that every voter has the information they need to make an informed decision at the ballot box. And it’s about holding those in power accountable when they attempt to undermine the rights of Ohioans to shape their government.

I urge those in the election law community both in Ohio and nationally to follow this case closely. The Ohio Supreme Court’s decision will have profound implications for the integrity of our elections. You can track the case by visiting the Ohio Supreme Court docket at [this link](https://www.supremecourt.ohio.gov/Clerk/ecms/#/caseinfo/2024/1200). But don’t stop there. Share the news of this lawsuit with your networks. Talk to your friends, your family, your neighbors. Ohio’s future is on the line, and it’s up to all of us to defend it.

Madison’s solution to combating factions was in the constitution and the rule of law. “There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.”

One cause of factions is gerrymandering, and the factions of politicians who benefit from gerrymandering in Ohio are doing everything in their power – legal or illegal – to stop this constitutional amendment that threatens their outsized, undeserved, and unconstitutional power and influence.   

This is not just a legal issue; it’s a moral one. The right to fair elections is fundamental to our democracy. As Ohioans, we must stand together against any attempt to subvert that right. Please, stay informed, stay engaged, and help spread the word about this critical fight for the future of our state that may have broader implications for the future of free and fair elections across the country.